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5. The general duty of disclosure
5.1 The nature of the problems which have arisen can be clarified by explaining the traditional understanding of the roles of police, prosecutors and defence in the Scottish system, and the developments which have recently occurred and their impact on that system. I then propose to look at the way in which the issue has been dealt with in European authorities and in English law, and to refer briefly to the rules in some other jurisdictions, before suggesting what rule should be adopted in Scotland. It is, I think, important to spend some time on this issue, and to look at what has been said by the judges who decided the important cases rather than try to summarise their effect because experience shows that the precise way in which the fundamental duty of disclosure is expressed can have significant consequences for the operation of the system.
The traditional Scottish system
5.2 The classic description of the Scottish system was given by Lord Justice Clerk Thomson in Smith v HMA [1952] JC 66. He explained that the investigation of crimes is conducted by the police and continued:
"However, the duty of the police is simply one of investigation under the supervision of the Procurator Fiscal and the results of the investigation are communicated to the Procurator Fiscal as the inquiries progress. It is for the Crown Office and not for the police to decide whether the results of the investigation justify prosecution. The two functions are quite distinct. In carrying out their initial investigation the police perform a public duty. Their investigation is entirely private and no one else is entitled to take part in it. As the police have a monopoly, two results follow. First, the manner in which they are allowed to carry out their investigations is regulated by certain rules. Second, as they are the sole investigators and no more than investigators, it is their duty to put before the Procurator Fiscal everything which may be relevant and material to the issue of whether the suspected party is innocent or guilty. We repeat, it is not for the police to decide what is relevant and material but to give all the information which may be relevant and material.
"Clearly, in reporting the results of their investigation, the police must exercise a power of selection. It would be absurd to suggest that all their results should be submitted. But a cautious officer will remember that he is not the judge of what is relevant and material and will tend to err on the safe side. If he is in doubt, he should consult the Procurator Fiscal. He will also remember that, as he and he alone has the opportunity of the initial investigation in the public interest, he must put the result of his investigations fairly before the Fiscal in order that the Crown may have a fair basis on which to decide whether or not to prosecute."
5.3 LJC Thomson then observed that that it was the function of the Crown to prepare a precognition and indictment, the main purpose of which is to state the charge against an accused and give the names of the witnesses and the productions on which the Crown would rely to prove the case, and remarked that a practice had grown up, which was undefined and hardly capable of definition, of including on the indictment witnesses and productions which might have a bearing on the innocence of the accused. He continued:
"However that may be, the Crown does nowadays honour the practice of including witnesses and productions beyond what is strictly necessary for its own case. This practice springs from the Crown's recognition that it has opportunities for investigation which are not enjoyed by the defence. It is based also on the presumption of innocence and the consideration that an accused man is entitled to the benefit of the doubt. But the practice has not been pressed so far as to mean that the Crown is under any obligation to discover a line of defence. If, in a stabbing affray, the information before the Crown showed that both assailant and victim had knives in their hands, it would be the duty of the Crown to include in the indictment the knife which was in the victim's hand and the witnesses who can speak to it. But if there is nothing in the material before the Crown to suggest a possible defence of self-defence, it would appear unnecessary for the Crown to include something in the indictment just because it might have a possible bearing on such a defence if taken. It is a question of degree."
5.4 It is perhaps worth making two observations at this point. Firstly, in some of the recent cases in which it has been held that miscarriages of justice have occurred, the decision would have been the same if the law had remained as it was in 1952: an example is Johnston & Allison v HMA [2006] HCJAC 30, where the police "filtered out" witnesses whose evidence might have been inconsistent with the case being made. Secondly, Scots law as traditionally understood required the Crown to pay greater attention to the interests of the defence than did some other jurisdictions. For example, in R. v Stinchcombe [1991] 3. S.C.R. 326 (Canada) Sopinka J. remarked:
"Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both criminal and civil proceedings."
Recent Scottish developments
5.5 The three recent cases which have given rise to this review are McLeod v HMA (No. 2) [1998] JC 67, Holland v HMA [2005] SC( PC) 3 and Sinclair v HMA [2005] SC( PC) 28. For the present purpose I do not think it necessary to go through the particular facts of these cases in detail: the object is to try to extract statements of the governing principle.
5.6 McLeod was concerned with an application by the defence to recover questionnaires which had been completed at the request of the police by a large number of witnesses. The "broad proposition" advanced by counsel for the defence was "that all statements and similar material generated in the course of an investigation which led up to the charges against an accused person should be made available to the accused, unless there were special reasons why any particular document should not be handed over" (pp.72-73). The court was referred to the ECtHR decision in Edwards, quoted below, and Lord Justice General Rodger said (p.75):
"What the court regarded as a requirement of fairness was that the prosecution authorities should disclose to the defence 'all material evidence for or against the accused' (emphasis added). Counsel sought to persuade us that this should be read as meaning all evidence which might turn out to be material, all possibly material evidence. On that basis he argued that the passage supported his broad proposition. I am satisfied however that the passage should not be read in that way…..For these reasons I find nothing in Edwards which supports counsel's contention that an accused person is entitled to recover documents simply on the basis that they comprise statements taken in the course of an investigation which might possibly contain some material evidence. So far as one can derive guidance from the case it suggests that an accused person would be entitled to recover documents which were material to his defence to the charges against him."
5.7 Later, at p.79, the LJG said:
"Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused."
5.8 Again at p. 80, he said, after commenting on the difficulty formulating the test which the court should apply:
"I consider, however, that an accused person who asks the court to take the significant step of granting a diligence for the recovery of documents, whether from the Crown or from a third party, does require to explain the basis upon which he asks the court to order the haver to produce the documents. The court does not grant such orders unless it is satisfied that they will serve a proper purpose and that it is in the interests of justice to grant them. This in turn means that the court must be satisfied that an order for the production of the particular documents would be likely to be of material assistance to the proper preparation or presentation of the accused's defence."
5.9 The Lord Justice Clerk Cullen said, at p. 83:
"Firstly, it is one thing to test the history of a particular case against a general principle which is contained in or derivable from the Convention. It is another thing to say that a particular method of disclosure of evidence is required as a matter of routine in every case. The Convention does not require this, let alone that there should be uniformity of methods of disclosure as between the various countries to which the Convention applies. Secondly, it is to be noted that in this connection the requirement derived from the Convention relates not to all evidence but to 'all material evidence' for or against the accused. The disclosure advocated by counsel, in accordance with what he referred to as 'principle' would be of such width as to include all evidence regardless of whether it was material or not. Thus, even if it be assumed that the Convention applied directly to the law of Scotland at the present time, it does not require such disclosure. Furthermore what counsel advocated was no 'principle' but merely a method or procedure. While it may have the securing of a fair trial as its ultimate objective, it would be extravagant in scale and, as counsel fairly accepted, not workable in its full-blown form."
5.10 In the wake of the decision in McLeod, the Crown Office sought to establish a regular procedure for disclosure by issuing a statement of practice. This is referred to in the later decisions but has been overtaken, and I need not enlarge on it.
5.11 The decision in Holland is less significant for the immediate purpose. The relevant part of the decision concerned the disclosure of previous convictions and outstanding charges in relation to witnesses. There was at one time a clear rule that such matters should not be disclosed, but that rule had been modified and the practice had become that such matters should be disclosed where the defence could show that they would be relevant to a proposed defence. The decision in Holland gave the coup de grace to the old rule and established that in principle previous convictions and outstanding charges are disclosable. Lord Rodger of Earlsferry said, at page 24:
"Although the approach recommended in the Book of Regulations constitutes a significant advance on the traditional stance of the Crown, it still requires procurators fiscal to decide whether the circumstances are such that, in the public interest, the witnesses' previous convictions should be revealed to the accused's representatives. That procedure is open to the kind of criticism expressed by the European Court in Rowe and Davis v United Kingdom [2000] 30 EHRR 1, 30. Having explained that it is not the role of the European Court to decide whether or not non-disclosure on public interest grounds was strictly necessary, the Court continued, at para. 62:
'Instead the European Court's task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused.
'63: During the applicants' trial at first instance the prosecution decided, without notifying the judge, to withhold certain relevant evidence on grounds of public interest. Such a procedure, whereby the prosecution itself attempts to assess the importance of concealed information to the defence and weigh this against the public interest in keeping the information secret, cannot comply with the above-mentioned requirements of article 6(1).'
"Although it is open to the defence to apply to the Court for an order for production, the scheme envisaged by the Book of Regulations places procurators fiscal and Crown Counsel in the invidious position of having to judge the relevance of previous convictions to a defence, the lines of which the accused's representatives are generally under no obligation to reveal. In reality, however, the scheme is more deeply flawed since it is obvious that a reasonably competent defence agent or counsel, considering how to approach the examination or cross-examination of a witness, would wish to know whether the witness had any previous convictions and, if so, their nature. Indeed it is precisely the kind of thing he would want to know. What use, if any, the agent or counsel chooses to make of the information is a matter for him and he may well not be able to decide until he actually has it. But, at the very least, the information will help in assessing the strengths and weaknesses of the witness. Therefore, information about the previous convictions of any witnesses to be led at the trial 'would be likely to be of material assistance to the proper preparation or presentation of the accused's defence'. Under article 6(1) the accused's agents and counsel are accordingly entitled to have that information disclosed so that they can prepare his defence. Since in this way both sides will have access to this information at trial, the accused's right to equality of arms will be respected."
5.12 That passage may leave open a question whether the accused has a right to disclosure of all the previous convictions and outstanding charges of all the Crown witnesses without regard to the nature, age or possible relevance of the convictions or the significance of the witness in the proceedings. That is an issue raised in McGhee v HMA, but I shall return to it later.
5.13 Sinclair dealt with the disclosure of previous statements by a witness. In very brief outline, an eyewitness of an assault had made two statements to police officers to the effect that she had seen the appellant strike the complainer with a pair of scissors and that the complainer had told her that the appellant had struck him with a hammer as well as scissors. When she came to give evidence, she said that she had seen the appellant strike the complainer with a hammer and she denied, at one time, that she had said anything different in a police statement and at another said she could not remember. From the course of proceedings it was clear that both the advocate depute and the solicitor advocate for the defence realised that the police statements had not mentioned seeing an assault with a hammer, but the statements had not been disclosed and were not produced, even after the question had arisen. In the material part of his speech, Lord Hope of Craighead referred to the European authorities and continued:
"All but the first of these decisions postdate the decision in McLeod. I would take from them the following propositions. First, it is a fundamental aspect of the accused's right to a fair trial that there should be an adversarial procedure in which there is equality of arms between the prosecution and the defence. The phrase "equality of arms" brings to mind the rules of a mediaeval tournament - the idea that neither side may seek an unfair advantage by concealing weapons behind its back. But in this context the rules operate in one direction only. The prosecution has no Convention right which it can assert against the accused. Nor can it avoid the accused's Convention right by insisting that the duty does not arise unless the accused invokes it first. Secondly, the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused. For this purpose any evidence which would tend to undermine the prosecution's case or to assist the case for the defence is to be taken as material. Thirdly, the defence does not have an absolute right to the disclosure of all relevant evidence. There may be competing interests which it is in the public interest to protect. But decisions as to whether the withholding of relevant information is in the public interest cannot be left exclusively to the Crown. There must be sufficient judicial safeguards in place to ensure that information is not withheld on the grounds of public interest unless this is strictly necessary.
"There is no question in the present case of Pamela Ritchie's police statements having been withheld from the defence on the grounds of public interest. The Board was not told why these statements were withheld, but the Advocate Depute did not seek to argue that there were good grounds for doing so. It seems likely that this was due simply to an error of judgment on the part of the prosecuting authorities - the kind of error of judgment that the Lord Advocate's Statement of Practice is designed to eliminate. Whatever the reason it resulted in an inequality of arms when the case came to trial. The prosecution had in its possession statements which could have been used to undermine Pamela Ritchie's reliability and her credibility. This was information that was plainly likely to be of material assistance to the defence, as Pamela Ritchie's evidence was essential to the proof the Crown case. It makes no difference to the fairness of the trial that the Advocate Depute who was conducting the trial was under the same disadvantage as the appellant's solicitor advocate, as he too did not have access to the contents of these statements. Nor can the fact that the statements were not made available be attributed to any failure in duty on the part of the defence. The duty of disclosure was on the Crown, and it was a breach of that duty for these statements not to have been provided to the defence before the trial.
"It is impossible therefore to say that the appellant's defence was not prejudiced by what happened in this case. It was prejudiced because his solicitor advocate was not in a position to cross-examine Pamela Ritchie when she changed her evidence on the basis of what she said and what she did not say to the police when she was being interviewed by them after the incident. Nor can it be said that the appeal court removed the unfairness. This is because it took the view that the fact that the police statements were not produced before the trial was not due to any breach of duty on the part of the Crown and that it was up to the defence to decide whether or not to ask for them: 2004 SLT 794, 798, paras 15 and 16.
"For these reasons I would hold that the appellant's complaint that there was a breach of his article 6(1) Convention right to a fair trial is well founded. In my opinion the act of the Lord Advocate in bringing these proceedings and seeking a conviction without having disclosed these statements was incompatible with the appellant's right to a fair trial."
5.14 Lord Rodger of Earlsferry gave an opinion to the same effect. He said:
"On any view, the statements which Ms. Ritchie gave the police contained material evidence against the appellant - they were after all the basis on which she was precognosced with a view to giving evidence for the Crown at the trial. More generally, the statements of all the witnesses in the list attached to an indictment or in any supplementary notice served under section 67 of the Criminal Procedure (Scotland) Act 1995 must contain material evidence against or, in some cases, in favour of the accused. Similarly, if the defence give notice that they intend to lead a witness and the Crown have a statement from him, then that statement is likely to contain material evidence for the accused. It follows that the police statements of all the witnesses who are to be called at the trial are to be regarded as containing material evidence either for or against the accused."
5.15 Lord Rodger said also that it was unnecessary for the decision in Sinclair to discuss situations in which non-disclosure might be justified in the public interest or how such cases should be handled.
European Decisions
5.16 The development of the principle of disclosure has been influenced by decisions of the ECtHR and of the courts in England and Wales, and it is helpful to see how the duty of disclosure has been formulated in those cases, before returning to the more recent Scottish cases. In Edwards v United Kingdom [1992] 15 EHRR 417, the ECtHR held, at para. 36 of its judgment:
"The court considers that it is a requirement of fairness under Art. 6(1), indeed one which is recognised under English law, that the prosecution authorities disclose to the defence all material evidence for or against the accused and that the failure to do so in the present case gave rise to a defect in the trial proceedings."
5.17 The material issue in Edwards was one of identification and the failure was a failure to disclose that a material witness had not picked out the accused when shown certain photographs: it was held however that the defect in the trial proceedings had been remedied at the appeal stage. In Rowe and Davis v United Kingdom [2000] 30 EHRR 1, the ECtHR elaborated the proposition set out in Edwards as follows:
"60. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition, article 6(1) requires, as indeed does English law, that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused.
"63. During the applicants' trial at first instance the prosecution decided, without notifying the judge, to withhold certain relevant evidence on grounds of public interest. Such a procedure, whereby the prosecution itself attempts to assess the importance of concealed information to the defence and weigh this against the public interest in keeping the information secret, cannot comply with the above-mentioned requirements of article 6(1)."
5.18 In that case, the prosecution had withheld relevant information from the defence on public interest grounds, and the court held that the prosecution were not entitled to act in that way at their own discretion without informing the trial judge.
5.19 The ECtHR position was elaborated further in Edwards and Another v United Kingdom [2003] 15 BHRC 189, where the court discussed limitations on the right to disclosure for the protection of competing interests, but I propose to discuss this aspect later.
English Law
5.20 In English law before 1996, disclosure was governed by common law rules, and by 1994 the position which had been reached was that the duty was held to be one to disclose all material matters which affected the case relied on by the prosecution, whether they would strengthen or weaken the prosecution case or assist the defence case ( R v Ward [1993] 1 WLR 619, R v Keane [1994] 1 WLR 746). The rule was modified by the Criminal Procedure and Investigations Act ( CPIA) 1996, which provided for what is described, in the side-notes, as primary and secondary disclosure. Primary disclosure was required under section 3(1) which provided:
"The prosecutor must:
(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused, or (b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a)."
5.21 Secondary disclosure was required under section 7(2) which provided:
"The prosecutor must:
(a) disclose to the accused any prosecution material which has not previously been disclosed and which might be reasonably expected to assist the accused's defence as disclosed by the defence statement given under section 5 or 6, or (b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a)."
5.22 The defence statement referred to is a written statement setting out in general terms the nature of the accused's defence, indicating the matters on which he takes issue with the prosecution and the reasons why he takes issue.
5.23 Section 3(1)(a) was amended by the Criminal Justice Act 2003 and as amended requires that the prosecutor must:
"(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused."
At the same time section 7 was repealed.
5.24 These provisions were commented on in R v H and C [2004] UKHL 3, at paragraph 35:
"If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties' respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court."
Other jurisdictions
5.25 I have not attempted to carry out a wide survey of the rules in other jurisdictions, but it is worthwhile to note the rules applicable in Australia and Canada. In Australia, there are differences between the jurisdictions, as explained in the NSW Law Commission Report 2000.
In NSW "At common law the prosecution is required to disclose its intention to call a witness at trial who was not called at committal and to give the defence a copy of the relevant witness statement. The prosecution is not generally required to provide the defence with copies of statements of persons whom the prosecution does not intend to call as witnesses (even if the statements could provide the defence with relevant evidence) although it is considered good practice to do so. A decision by the prosecution not to call a particular person as a witness can constitute a ground for setting aside a conviction if it gives rise to a miscarriage of justice." [ Petty v The Queen [1991]) 173 CLR 95 at 108)
5.26 However barristers' and solicitors rules and DPP guidelines do require disclosure of all material which "might be relevant to the guilt or innocence of the defendant, including the names and means of locating potential witnesses".
5.27 In Canada, the leading case is R v Stinchcombe (above). The judgment of Sopinka J is particularly illuminating. He traced the evolution of the duty of disclosure in some detail, starting from the observation that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. He dealt with a number of objections to the requirement of disclosure, recognising that there were situations in which, for example, the identity of informers might have to be protected, and approved previous statements including one by McEachern CJBC to the effect that the Crown must disclose "all evidence which may assist the accused even if the Crown does not propose to adduce it" and another by McLachlin J, that the Crown is under a duty at common law to disclose to the defence "all material evidence whether favourable to the accused or not." He went on to say:
"As indicated earlier, however, this obligation to disclose is not absolute. It is subject to the discretion of counsel for the Crown. This discretion extends both to the withholding of information and to the timing of disclosure. For example, counsel for the Crown has a duty to respect the rules of privilege. In the case of informers, the Crown has a duty to protect their identity. In some cases, serious prejudice or even harm may result to a person who has supplied evidence or information to the investigation. While it is a harsh reality of justice that ultimately any person with relevant evidence must appear to testify, the discretion extends to the timing and manner of disclosure in such circumstances. A discretion must also be exercised with respect to the relevance of information. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant….. The initial obligation to separate "the wheat from the chaff" must therefore rest with Crown counsel. There may also be situations in which early disclosure may impede completion of an investigation. Delayed disclosure on this account is not to be encouraged and should be rare…..
"The discretion of Crown counsel is, however, reviewable by the trial judge. Counsel for the defence can initiate a review when an issue arises with respect to the exercise of the Crown's discretion. On a review, the Crown must justify its refusal to disclose. Inasmuch as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule."
5.28 Sopinka J went on to comment on the approach to be taken by the trial judge.
Are there limits to the duty of disclosure?
5.29 It has been clear at least from the time of the decision in Smith supra that the prosecuting authorities, including both the police and the Crown, have the initial information about potential criminal proceedings and vastly greater resources to investigate than does the defence and that they are under some corresponding obligation to disclose what they know, as necessary in order to secure a fair trial.
5.30 Why then should they be entitled to withhold from the defence any of the information gathered in an investigation, unless there is some definite reason to anticipate positive harm from the disclosure? As Sopinka J pointed out, the fruits of an investigation should be available to the public to secure justice. In his opinion, he dealt with and rejected a number of possible reasons for limiting disclosure. One such reason is, I think, worth mentioning. It has been suggested that too wide a disclosure regime gives too great an opportunity for an accused person to create opportunities for delay: I discount that argument because the paramount objective is a fair trial, and achieving fairness inevitably costs something in time and effort. I would add that in securing the efficient operation of a criminal justice system, it is important that the process should be felt to be fair by those involved in it: and in consequence it may be said that the mere fact that an accused or his representative wants to see some document may be a good reason for allowing him to do so, unless there is some clear contrary factor. That is reinforced by the fact that in my discussions with practitioners, I have been told of a significant number of cases in which material not originally disclosed has been found and has turned out to be of real value to the defence. It has not been possible to confirm what has been said by checking the individual facts of these cases, but there is no reason to doubt that such cases have occurred.
5.31 On the other hand, there is very substantial reason to think that totally unrestricted disclosure would be impracticable and probably damaging to the operation of the criminal justice system. That is evident simply from looking at the mass of paper which is generated in even a relatively straightforward enquiry. It is also supported by experience in England and Wales. As I understand the position there, before and immediately after the introduction of the CPIA regime, the tendency was to allow very open access to all material gathered by the investigation, a tendency which was encouraged by some judges. More recently, the CPS has insisted on applying the statutory definition strictly and resisting applications to disclose material unless there is actual reason to think that it is capable of undermining the prosecution or assisting the defence. That approach has been supported by the courts, and my impression from discussion with defence practitioners in England is that it has been accepted by them, and that there have been few real complaints about it.
5.32 It does, however, seem clear that if withholding information is to be justified it must be justified pragmatically, and there must then be a robust, fair and reliable system of selection of material which is not to be disclosed to make it acceptable to deprive the defence of the possibility, be it remote, of turning up some valuable piece of evidence whose significance has not been appreciated or which has been wrongly withheld. I discuss this issue further in chapter 7.
What should be the governing principle?
5.33 From what has been said, it follows that what is needed is a firm statement of principle or rule which can, in the first instance, provide police and prosecutors with a proper basis of judgement. From the authorities canvassed above, it is possible to draw several candidates for that principle:
Edwards: "All material evidence for or against the accused" (remembering that at another point the court identified the defect as being that "relevant" evidence was withheld).
The old English rule: "All material matters which affect the case relied on by the prosecution, whether they could strengthen or weaken the prosecution case or assist the defence case."
CPIA (as amended): "Any prosecution material… which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused."
Australian guidelines: "Any material which might be relevant to guilt or innocence of the defendant."
Stinchcombe: "All material evidence whether favourable to the accused or not." "All evidence which may assist the accused even if the Crown does not propose to adduce it."
McLeod: "All material evidence for or against the accused… information which would tend to exculpate the accused" ( LJG). "Not all evidence but all material evidence" ( LJC).
Sinclair: "All material evidence… any evidence which would tend to undermine the prosecution's case or assist the case for the defence is to be taken to be material" (Hope). 8
5.34 These formulations could be regarded as different ways of saying almost the same thing, but there are shades of difference between them which could lead to significantly different results. In particular, it seems to me that what is said in Sinclair is not quite the same as what is said in McLeod. The difference, in my view, is that the formulation in Sinclair, deliberately or not, places less emphasis on the materiality of the evidence, objectively considered, and more on the subjective assessment of the defence. The different formulations were discussed at some length in the Reference Group. In these discussions, it was argued strongly that "evidence which may assist the case for the defence" had a wider scope than "material evidence for or against the accused". From comments made to me by judges and sheriffs, it is clear that similar arguments have been repeatedly canvassed in court since the decision in Sinclair and have given rise to a degree of uncertainty. The differences between the rival formulations may be subtle, but they are sufficient, given the existing apparent uncertainty, to make it desirable to set out the rule for Scotland in statute. As regards the choice of the formula to be enacted, I do not think that it is necessary to repeat the previous discussion and comparisons. I would simply say that, reviewing all the material, it seems to me that the formulation in McLeod correctly reflects the requirements of the European Court decisions, particularly Edwards. Having regard to the experience in other jurisdictions, particularly in that of England and Wales, it should enable the requirements of the defence for equality of arms to be met without overloading the process with useless and irrelevant material. It is as clear and definite as can be expected and I recommend that it should be adopted in statute to clarify the law in Scotland.
5.35 Any definition is however open to interpretation, and has to be applied across a range of cases of very different levels of complexity. I think, therefore, that the statute should make it clear that in applying it the prosecuting authorities should have regard to the overriding requirement of a fair trial and should be prepared, so far as possible, to act reasonably in considering defence requests for further disclosure. I think also that it would be desirable to try to add to the precision of the process by specifying the principal categories of evidence or information which should be regarded as exculpatory and "material" within any of these statements. Such material might be classified under six heads:
5.35.1 Evidence which may point to the conclusion that no crime has been committed or that no crime was committed on the date or at the place libelled.
5.35.2 Evidence which may contradict evidence (real or oral) on which the Crown case will rely.
5.35.3 Information which may cast doubt on the credibility or reliability of the Crown witnesses.
5.35.4 Information which may be inconsistent with scientific or other expert evidence on which the Crown will rely or with inferences which may be drawn from such evidence.
5.35.5 Evidence or information which may point to another person as perpetrator.
5.35.6 Evidence or information which might reduce the degree of seriousness of the offence.
5.36 It might also be possible to list some types of material which will not normally be considered relevant or material, such as records of routine house to house enquiries which have proved negative, records of investigations which came to a dead end, for example where a suspect was investigated and found to have been abroad at the time of the offence, and background material such as investigation plans. Other examples of this sort of material are mentioned in paragraph 10.18. It may be helpful to include such a categorisation in a code of practice issued under the statute, but it must be made clear that there may on occasion be exculpatory material in any type of document.
Reasonable lines of enquiry
5.37 The fairness of the trial will depend not only on the Crown's disclosure of all exculpatory material in its possession, but also on the acts of the police (or other investigator) prior to that point. The police therefore must have a duty to pass all material which may be exculpatory to the Crown. Earlier still, the duty of disclosure implies a responsibility of the police to conduct the investigation in a fair manner, and in particular to pursue "all reasonable lines of enquiry". These are important but difficult concepts, and I discuss them further and make specific recommendations in chapter 10.
5.38 There is one aspect of the duty to pursue "all reasonable lines of enquiry" which should be mentioned at this point. Government departments hold a great deal of information, including information about individuals and their affairs. There is, therefore, a theoretical possibility that there might be some information in the possession of some part of government which might have a bearing on a criminal investigation. I do not think that the duty of disclosure, as so far established, is so wide as to require investigators to trawl through all the information held by the government, in case something might turn up which might help an accused. If there are facts or circumstances which come to light in an investigation which point to a possible line of enquiry, that should, of course be pursued, but in the absence of some pointer to a line of enquiry which can be considered reasonable, a general search of government material is not, in my view, required.
Particular instances - statements
5.39 The effect of Sinclair is to require production and disclosure of all statements of persons whom the Crown intend to call as witnesses. That, I think, does have to be taken as a fixed requirement in solemn cases, although if the matter were free from direct authority, I would be inclined to suggest that in most cases there are a number of witnesses whose evidence is not central and that in such cases a summary or brief indication of the nature of the evidence would be amply sufficient.
5.40 There is no doubt that over recent years reference to previous statements of witnesses has become very much more common in Scottish criminal trials. At one time, reference was only likely to be made where it was thought that a witness was withholding evidence, in order to put some pressure on him or her to speak up. There are two principal advantages claimed for the practice of wider use of statements. The first is that it enables witnesses to be reminded of things they might otherwise have forgotten and helps the diffident and uncertain or vulnerable witness to give proper evidence: it also of course continues to provide a means of putting pressure on the reluctant witness. The second advantage is that it enables the credibility and reliability of the evidence in court to be tested by reference to statements made nearer the time of the events. The second advantage is the one to which Sinclair particularly referred.
5.41 There is however a strong feeling, particularly among judges and sheriffs, that the effect of the greater use of statements on trials has been adverse, and that a great deal of time is liable to be taken up with excessive criticism of mere verbal discrepancies between the evidence and previous statements. If this is a real problem, it is one which can only be managed by the courts themselves: possibly judges should be supported if they intervene to prevent excessive cross-examination of this kind. It may be added that it cannot be assumed that the earlier statement is necessarily more accurate or more reliable than the later evidence. A witness interviewed immediately after a stressful event may well; for example, omit details which later come to mind. Witnesses may be reluctant to speak up when first interviewed and only give a full narrative on second or third interview. Further, the police officer or other person carrying out an interview may not have full knowledge of the circumstances and therefore may fail to ask questions about matters which later turn out to be significant. This is not to question the point established by Sinclair that in solemn cases, witness statements have to be disclosed. But it does call into question whether the same practice need apply in summary cases, which I consider in chapter 9.
5.42 There is a further point about statements which applies to both solemn and summary trials. It is now the norm for the previous statements of witnesses to be available to both prosecution and defence, but not to the witnesses themselves. The complaint has been made that too often the result is that the trial takes the form of a one-sided memory-test, where any discrepancy between the witness's words at court and the words in their statement may be the subject of meticulous cross-examination. Sometimes this may be valid and important, but in many cases it seems of dubious value for the pursuit of justice. This is not strictly an issue of disclosure in the sense with which this report is concerned but I agree with the suggestion that witnesses should be able to refer to copies of their statements when called to give evidence in court, in all cases where these statements have been made available to the Crown and to the defence. It has been suggested that this might lead to an increased risk of witnesses standing by a statement containing a version of events which might have been given carelessly or inadvertently, or which had been embellished (inadvertently or deliberately). However, I believe that rigour in the way statements are taken, as I recommend below, should reduce the risk that such problems will arise. Elsewhere in the UK, the practice of giving witnesses copies of their statements is accepted and uncontroversial.
5.43 In HMA v B [2006] SCCR 692, Lord Hardie made some comments which might be taken as going further than Sinclair. He said, at p. 700:
"In any event, the Crown properly accept that in this case there has been a failure to disclose material evidence. The 12 statements from Crown witnesses clearly fall within the category of matters that the Crown are obliged to disclose… However it seems to me that the additional statements in the possession of the police also come within this category. Although Lord Rodger of Earlsferry confined his remarks to statements of witnesses to be led at the trial and to witnesses considered in McLeod v HMA I do not think that he intended that disclosure could not extend to others. Indeed there may be instances where the obligation to disclose information favourable to the defence is not immediately obvious to the police or procurator fiscal. Such a situation has arisen in the present case in relation to four witnesses. The Crown have resolved this dilemma by disclosing all of the police statements in their possession. I understand that is the practice in new cases and should be adopted by the Crown for all old cases."
5.44 I do not doubt that on the facts of that case, there was a failure to disclose statements which were relevant and material. However, on one reading, the passage quoted could be taken to mean that all statements in the possession of the prosecuting authorities should be disclosed, relevant or irrelevant, material or immaterial. If that is the meaning intended, it seems to me that it goes much too far, and is not justified by the requirement of a fair trial. I would therefore recommend that it should be made clear in any legislation that the rule that what has to be disclosed is relevant and material information applies to statements as well as any other material.
Particular instances - convictions and outstanding charges
5.45 A similar issue arises in relation to the previous convictions and outstanding charges of witnesses. There can be no doubt, now, that in solemn cases the ordinary rule is that convictions and outstanding charges should be disclosed. There is however an outstanding question as to whether there are any exceptions to that rule. There may be cases in which a conviction is so old or so trivial or so unrelated to the sort of issue which arises in the prosecution that it could not reasonably be regarded as of any value to the defence. That issue arose in McGhee v HMA but has not been resolved in that case. Again, I find it difficult to see any logical reason why the rule that it is material matters which have to be disclosed should not apply to previous convictions and outstanding charges, and I recommend that that should also be made clear in any legislation. There is, in addition, the question of the effect of Article 8 of the Convention, but that will be considered in the next chapter of this report.
Recommendations
5.46 To minimise the risk of failure to disclose exculpatory material, I recommend:
5.46.1 There should be a statutory definition of the duty of disclosure which should provide that, with a view to implementing the requirement of fair trials in criminal matters, the duty of the prosecutor in both solemn and summary cases is to disclose to the defence all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it.
5.46.2 The statute should provide that the duty applies to all categories of material produced or recovered in the course of a criminal investigation and that it applies throughout the whole course of the investigation and prosecution.
5.46.3 The statute should provide that the material to be disclosed includes but is not limited to the categories set out in paragraph 5.35 above.
5.47 The key provisions should be contained in the primary legislation, but I also recommend that there should be a code of practice issued under the statute, as in England and Wales. This could contain supporting information on the implications of the Act and could also specify standard processes. I make further recommendations designed to assist the practical implementation of the duty of disclosure in part III of this report.
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